BARON: Trudeau’s grounds for invoking Emergencies Act are extremely thin

Toronto Sun: Joanna Baron is Executive Director of the Canadian Constitution Foundation.

The Trudeau government is invoking the Emergencies Act for the first time in Canadian history. The Act went undeclared throughout the pandemic; containing strict preconditions for its invocation. The grounds for invoking it now, in the face of disruptive but peaceful protests which provincial police powers are fully equipped to respond to, seem extremely thin.

In section 8(3), it declares that the crisis “exceed the capacity or authority of a province to deal with it” before the cabinet can declare a public welfare emergency and issue emergency orders that address it.

As well, the government must consult with the provinces and obtain the agreement of Cabinet prior to invoking the Act. (So far, the premiers of Alberta, Manitoba, Saskatchewan, and Quebec are reported to oppose invoking it). Within one week of the Act’s declaration, Parliament must approve it.

The Act defines an emergency as a situation that “seriously endangers the lives, health or safety of Canadians” or “seriously threatens the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada”. The definition of “threats to the security of Canada” are defined as the following:

(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,

(b) foreign-influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,

(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and

(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada.

Notably, “lawful advocacy, protest or dissent” are excluded. The Ottawa protests certainly pose a nuisance but have been largely peaceful and non-life-threatening. Disruptive and noisy protests are the lifeblood of vibrant democracies, absent violence or property damage, the demonstrations cannot constitute a national emergency.

It is a dubious precedent that protests happening squarely within provincial boundaries would be subject to the Emergencies Act. The case for an inter-provincial emergency was perhaps stronger in the case of the Windsor, Emerson, and Coutts border crossings with the U.S.. But the Ambassador Bridge has been cleared, and the focus now is mainly on the Ottawa occupation, where existing police powers grant more than enough leeway to enforce the law and crack down on unlawful activities.

The Act does not grant additional powers to direct local law enforcement: section 20(1) provides that “Nothing in a declaration of a public order emergency or in any order or regulation made pursuant thereto shall be construed or applied so as to derogate from, or to authorize the derogation from, the control or direction of the government of a province or a municipality over any police force over which it normally has control or direction.” The same appears to apply to RCMP officers ordinarily deployed under provincial control, as in the Alberta and Manitoba border crossings.

The Act also delineates the strict limits of the federal government’s emergency powers: its Preamble notes that while the Act authorizes “special temporary measures that may not be appropriate in normal times … the Governor in Council … must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency.”

In other words, the exercise of powers under the Act are still explicitly subject to the provisions of the Charter, including the right to free expression, free assembly, and freedom from unlawful search and seizure, as well as international human rights instruments.

Invoking the Act would still grant the government additional powers. It would allow the feds to block off travel between areas of the country, evacuate persons and remove personal property. They also could ban “any public assembly that may reasonably be expected to lead to a breach of the peace”.

In invoking the Emergencies Act, the Trudeau government is declaring that the provinces have shown themselves to be unable of dealing with the protests happening on their streets on their own.

The declaration is thus largely symbolic — at best, it signals that the PM is taking the situation seriously, and responds to criticism that he has been largely absent throughout the protests. At worst, it may give embolden unjustified and unconstitutional state action.

“Just watch me”, Pierre Elliot Trudeau replied when asked how far he would go to crack down on FLQ terror after invoking the War Measures Act, the Emergencies Act’s predecessor. We should closely watch what the PM does.

Joanna Baron is Executive Director of the Canadian Constitution Foundation.